AHF: Forcing People to Wear 'Barriers' Doesn't Affect Speech

LOS ANGELES—Apparently, AIDS Healthcare Foundation (AHF) is hoping that Judge Dean D. Pregerson hasn't actually read Los Angeles County's Measure B in its entirety, because nothing else would explain the argument which forms the basis of their Brief in Opposition to the Preliminary Injunction against the measure's enforcement which is being sought by the Plaintiffs in the Vivid Entertainment lawsuit.

To recap briefly, Measure B requires, among other things, that all producers of adult content in Los Angeles County obtain a public health permit from the County Health Department, complete a bloodborne pathogens training course and create an exposure control plan for STDs. And indeed, that's all in the summary published at the beginning of AHF's petition to put Measure B on the LA County ballot last November.

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But as any researcher can tell you, relying on a summary of the contents of an article—or in this case, a proposed law—is a bad idea, because that summary may leave out important parts of the full contents of, in this case, Measure B, the text of which was adopted as law by voters and can be found here.

For instance, while the summary states, "The measure would require use of condoms for all acts of anal or vaginal sex during the production of adult films, as well as the posting of the public health permit and notice to performers regarding condom use," one has to read Section 11.39.110(A) of the law to find out how misleading that statement is.

Section 11.39.110(A) actually states, "Any permit issued pursuant to this chapter may be suspended or revoked by the department and fines consistent with the provisions of this chapter may be imposed by the department for a violation of this chapter or any other violation of law creating a risk of exposing performers to sexually transmitted infections, including any violation of applicable provisions of the Los Angeles County Code, the California Health and Safety Code, the blood borne pathogen standard, California Code of Regulations Title 8, section 5193 or the exposure control plan of the producer of adult films, or any combination of such violations. The failure of a producer of adult films to require performers to use condoms during any acts of vaginal or anal sexual intercourse is a violation of this chapter." [Emphasis added]

As AVN has previously noted, California Code of Regulations Title 8, section 5193 requires not only the use of condoms in situations where a person (such as an adult performer) may be exposed to blood or "other potentially infectious materials" (OPIM), but also what's called "personal protective equipment." And what is that "personal protective equipment"? Well, the operative portion of Section 5193 says, "Where occupational exposure remains after institution of engineering and work practice controls, the employer shall provide, at no cost to the employee, appropriate personal protective equipment such as, but not limited to, gloves, gowns, laboratory coats, face shields or masks and eye protection, and mouthpieces, resuscitation bags, pocket masks, or other ventilation devices. Personal protective equipment will be considered 'appropriate' only if it does not permit blood or OPIM to pass through to or reach the employee's work clothes, street clothes, undergarments, skin, eyes, mouth, or other mucous membranes under normal conditions of use and for the duration of time which the protective equipment will be used." [Emphasis added}]

Now, it turns out the LA County public health permit is fairly easy to get, as "Porno Dan" Leal found when he went down to the health department's offices to apply for one. But getting the permit isn't the problem; keeping it is—and in order to keep it, adult producers must follow, among other things, the dictates of Section 5193 as detailed above. So if a county health inspector were to find that a particular producer had failed to require adult actors to use gloves, gowns, face shields or masks and eye protection or any clothing that would block blood or OPIM (like semen) from reaching an employee's undergarments, skin, eyes, mouth or other mucous membranes while those actors were having on-camera sex, the inspector could pull the permit, and unless the producer then required all of his/her actors to use the equipment described above, that producer could not get the health permit reinstated—and therefore could not shoot sex scenes in LA County!

Which brings us to AHF's opposition to Plaintiffs' Motion for Preliminary Injunction, the first paragraph of which reads, "In this case, Plaintiffs attempt to improperly conflate the process of making a film with the actual contents of a film, in order to claim that a law designed to protect the public health by preventing disease transmission at a workplace is actually an impermissible content-based regulation of speech. They make this claim despite the facts that (1) the law at issue makes no reference to the content of any film, nor regulates what films may be shown in Los Angeles County, and (2) Plaintiffs state that the most objectionable (to them) feature of the law—requiring utilization of prophylactic protection when engaging in certain sexual acts during the making of films—is already required under California State law." [Emphasis in original]

Now, to believe that if a producer were forced to make a sexually explicit film with actors dressed in condoms, gloves, face shields, masks, goggles (for eye protection) and other clothing which would prevent any skin coming in contact with semen or vaginal fluids, and yet claim that that producer's content were not being affected by Measure B, one would have to be abysmally stupid. In fact, one would have to be more than stupid; if such statements were included in a legal filing, that would appear to be an attempt to perpetrate a fraud upon the court.

Of course, it's only by claiming that Measure B doesn't affect the content of the adult films that AHF can go on to argue that the measure is just another in a long list of "regulations... to protect against harms that can occur when films are made." And indeed, in a companion filing to its Brief in Opposition, titled Intervenors' Request for Judicial Notice in Support of Opposition to Plaintiffs Motion for Preliminary Injunction, AHF attaches such documents as portions of the Los Angeles County Code, the California Fire Code, the Los Angeles Municipal Code, the Ventura County Code of Ordinances, and even Linda Parks' and Kathy Long's letter to the Ventura County Board of Supervisors regarding its own anti-adult ordinance which was referenced in AVN's article here. AHF wants Judge Pregerson to "take judicial notice" of those documents, likely in hopes that the judge will forget that Measure B is clearly a content-based restrict on adult producers' speech!

The Brief in Opposition also rehashes AHF's long-standing claim that adult performers have more STDs than a similarly-aged grouping of, say, Los Angeles bar/saloon/club patrons, even though the statistical analysis of the claimed infection rates has been thoroughly critiqued by epidemiologist Dr. Lawrence S. Mayer. It then goes on to claim that Vivid and the other Plaintiffs haven't submitted enough evidence for Judge Pregerson to make a ruling on the Motion for Preliminary Injunction, but despite the Plaintiffs' voluminous filings so far, and despite the fact that Measure B is a crystal-clear infringement on Plaintiffs' free speech rights, the question of whether the Plaintiffs have presented sufficient evidence for the injunction is undoubtedly a subject that will come up at the July 1 hearing on the motion. At that point, if Judge Pregerson feels that the evidence is insufficient, he will undoubtedly tell the parties what additional filings they need to make.

Finally, several of the arguments AHF made in its Motion to Dismiss the lawsuit are repeated in the Brief in Opposition, and AVN readers can read about those arguments here.

Check back with AVN later for more on AHF's continued attacks on the adult industry.

Pictured: Jessica Drake and James Deen as they might look performing a scene under Measure B.